Commonwealth v. Brown

Dissenting Opinion by

Price, J.:

This interesting case of first impression in this Commonwealth is properly developed factually and, to a large extent, legally by the Majority. I agree with the Majority that a parole agent is not required to obtain a search warrant when he is performing his normal duties. I must dissent, however, for this parole agent was well within the purview of his normal duties under th!e facts before us.

The performance of a parole officer’s duties requires him to know as much about the parolee as it is humanly possible to know. The court in Latta v. Fitzharris, 521 *199F.2d 246, 250 (9th Cir. 1975), has observed: “The parole officer ought to know more about the parolee than anyone else but his family.” Because of the duties imposed, the rehabilitative purposes of the parole system and the obligation of the parole system to protect the public, the parole officer must be given a unique right and interest in invading the privacy of the parolees to be supervised.

The appellant, on the other hand, as a parolee, does have a personal privacy interest, even against his parole officer. It is in the balancing of these interests that I disagree with the majority.

Because of the parolee’s unique position, amply demonstrated by the majority opinion, his privacy interest is subject to certain justifiable restrictions.

Such a restriction appears in this appeal. Appellant is in a different position than that of an ordinary citizen in that he is still serving a sentence, albeit parole, and is still under the control of the conditions of that sentence through the terms of his parole. The parole officer, as an agent of the Pennsylvania Board of Probation and Parole, is the person entrusted with the supervision and enforcement of these terms. In that sense the parole officer is a law enforcement officer. This is recognized in Section 27 of the Act of August 6, 1941, P.L. 861 (61 P.S. §331.27), and is necessary to deter a parolee from returning to a life of crime.

A parole officer’s normal duties then must include the preventing of possible further criminal conduct on the part of the parolee. To discharge these duties, some type of search must be permitted, without warrant, to determine, among other valid purposes, whether the parolee is using his home as a repository for stolen property. Therefore, one of the restrictions imposed upon a parolee is that he and his home are subject to search, without warrant, when the parole officer has any cause to suspect the parolee of being involved in further criminal conduct.

*200In this context it is important to note that a parole agent must of necessity make many visitations with those under his supervision. These, to be effective, must for the most part be unannounced and frequent. Thus in the most unexpected and unusual ways may a parole agent come upon evidence of continuing or new criminal activities by those under his supervision. It is unrealistic to impose on one in this unusual situation the standard of probable cause embodied in the principles applicable to ordinary searches. Nor is it appropriate to establish a guideline, whether it be called the “hunch” or “founded suspicion” principle, vto apply in süch searches. The situation requires that the law dispense with the warrant requirement, otherwise a frustration would develop between the law and the purposes of the parole system. The Pennsylvania legislature has recognized this need by promulgating the Act of August 6, 1941, P.L. 861, §27 (61 P.S. §331.27), which clearly reflects the adoption of the choice to dispense with the warrant requirement altogether in dealing with the parole officer — parolee relationship.

Under the facts of this case it is clear that on January 10, 1975, when the parole agent visited the appellant there was no specific knowledge on the part of the agent that the television, stereo receiver and speakers observed in the appellant’s home were, in fact, related to the burglary involved in this conviction. At that point in time the agent was armed only with information from a counselor at a local community center that appellant had possession of some stolen goods involved in the theft. It was not until January 17, 1975, the date of the arrest, that the goods were definitely identified as those involved in\the theft. When that definite link was established the arrest occurred. The majority characterizes this action as a delay. However, until this important link was established, ^he agent was not satisfied that his information justified an arrest of appellant. Such a decision on his part was certainly justified and well within the discre*201tion properly to be accorded a parole agent in the performance of his duties. This cannot be so narrowly construed so as to justify a holding, as the majority does, that the agent had ceased acting as an administrator of the parole system and had switched hats to become a police officer. The parole agent is at all times a.peace officer invested with police power as conferred by the Act of August 6, 1941, P.L. 861, §27 (61 P.S. §331.27), thus he always wears that hat. Quite obviously there is no hat to switch. It has often been said, with good reason, that, although a peace officer, a good parole agent does not regard himself as a policeman. To so classify him is a disservice which would directly reduce his effectiveness in the discharge of his duties and responsibilities.

The majority attaches great significance also to the presence, during the search and arrest on January 17, 1975, of two Sharon police officers. The record makes clear, and the lower court specifically found, that the purpose of their presence, at the express wish of the parole agent, was to lend the agent assistance in effecting the arrest in the event assistance was needed. Fortunately such aid and assistance was not needed and the agent effected the arrest without difficulty. The agent, however, was entitled to the thought of personal safety and protection under such circumstances and the back-up of the two police officers may well have been a factor in the peaceful accomplishment of the confirmation that the goods involved were indeed the stolen goods and in effecting the arrest. There is absolutely nothing in this record, or in the conclusions of the lower court, to suggest that the parole agent was the stalking horse for the police. To the contrary, it seems clearly established that the police were present to render assistance to the agent should it have become necessary. The police were passive actors in the critical events surrounding this search and arrest. There is no evidence that the police initiated this action in any way.

Thus, I can find no justification for mandating the *202requirement of a search warrant, and would affirm the judgment of sentence.

It is perfectly possible that the case would arise where the action involved would be so unreasonable under the parole system as to violate the Fourth Amendment. We could not, and would not, condone a course of conduct that would establish harassment or intimidation. A course of conduct establishing such would be violative of the spirit of the parole system and would infringe upon that area of privacy to which a parolee is entitled. It is clear, therefore, that parole agents, under the guise of the responsibility of their duties, may not conduct searches of parolees’ homes whenever and as often as they feel like it. The facts here presented, however, clearly establish that the search was consistent with, and included within, the ambit of the parole agent’s duties and responsibilities. It was certainly not oppressive or harassing. There is, therefore, no reason to impose the requirement of a warrant.

I would affirm the judgment of sentence.

Jacobs and Van der Voort, JJ., join in this dissenting opinion.